The Constitutions & Conventions

Question 1

Constitution Definition (Vernon Bogdanor)

Answer 1

Constitution can be defined as a ‘code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government and defines the relationship between these and the public’

Question 2

Development of UK constitutional documents

Answer 2

• 1215- Magna Carta- first constitutional document- tried to establish that the monarch was not above the law
• Case of Proclamations tried to establish that monarch could only make new laws through P
• Glorious Revolution of 1688
• Coup where James II (last absolute monarchist) replaced by King & Queen who were supposed by P
• Bill of Rights 1689 affirmed Magna Carta principles, civil rhh if guts and P sovereignty (after this P could never overrule Act of P)
• Act of Settlement 1700 created independent judiciary

Question 3

Modern monarchy

Answer 3

Largely a symbolic entity
- appoint PM
- dissolve P
- royal assent to Acts
Royal prerogative
- summon and prorogue P
- give pardons
- issue passports
- declare war
- negotiate treaties

Question 4

The executive

Answer 4

bodies which formulate and implement policy.
- Prime minister and cabinet, gov depts, civil service (at local level district councils)

Question 5

Judiciary

Answer 5

Judiciary: judges of all levels of seniority. Enforcement of criminal and civil law and adjudication of disputes between individuals

Question 6

The legislature

Answer 6

enacts new law and repeals/amends existing law ‘the kind of parliament’
- P (HoC & HoL)

Question 7

UK Constitution in documentation or not

Answer 7

uncodified in a single document
Rules come from legislation, case law & constitutional conventions

Question 8

Sources of Constitutional Rules (not convention)

Answer 8

Written:
- Bill of Rights, Human Rights Act
Judicial Precedent:
- Entick v Carrington
Entick accused of writing anti-government pamphlets was searched with force and arms and judge found Lord Halifax had no right to issue a search warrant
This judgement established state cannot exercise power unless power expressly authorised by the law

Question 9

Conventions summary

Answer 9

Rules about conduct of government which are not enforceable laws but agreed upon and respected
Consist of: informal rules of political practice, developed in evolutionary way, without any clear source in legislation or case law

Question 10

broad principles of constitutionalism

Answer 10

Government power must be exercised within legal limits and Gov must be accountable in law
Power dispersed so not concentrated in one body
Government is accountable to the people
Fundamental rights and freedoms of the citizen are protected

Question 11

Cabinet Manual Definition of Constitutional Conventions

Answer 11

‘rules of constitutional practice that are regarded as binding in operation but not in law’

Question 12

Convention functions

Answer 12

In the context of an uncodified constitution, conventions are a flexible way of filling in the gaps without resorting to law
Conventions tend to arise over time as a form of understanding
Conventions underpin cabinet system defining what ministers are responsible for
Also regulate relations between different bodies

Question 13

Conventions relating to Legislature

Answer 13

• HoL should defer to HoC
• HoL should not reject at second reading any legislation passed by HoC which carries out a manifesto commitment ‘Salisbury-Addison convention’
• Financial bills should only be introduced by a cabinet minister in the HoC
• Westminister parliament will not normally legislate with regard to devolved matters in Scotland, Wales or Northern Ireland without consent of devolved administration
• Arguable a new convention emerged- HoC should be consulted before Government embarks in any major foreign policy initiatives involving use of armed forces

Question 14

Conventions relating to Executive

Answer 14

• Monarch acts in accordance with advice by ministers (proroguing P)
• Monarch will not exercise strict legal right to refuse royal assent to bills passed by P
• Monarch will appoint prime minister
  Prime minister chooses cabinet ministers (head of Gov depts)
• Prime minister and chancellor of Exchequer should be MPs
• After a vote of no confidence by the HoC, gov will resign and advise monarch to dissolve P- leading to general election
• Monarch should be asked for consent to proposed legislation affecting interests of the monarchy

Question 15

Two twin conventions on Ministerial Responsibility

Answer 15

collective ministerial responsibility and individual ministerial responsibility

Question 16

CMR

Answer 16

discussions between ministers should remain confidential, once a policy line reached by ministers all ministers must maintain United front if they can’t they should resign as minister, Robin Cook (war in Iraq), Biris Johnson and (chequers agreement)

Question 17

IMR

Answer 17

Usually they would resign if they have failed the dept but after expansion in gov post war this has changed
Maxwrll-Fife guidelines after Crichel Diwn affair)
Was failing an operational one or a policy one

Question 18

Ministerial Code

Answer 18

Not a convention but written document codifying standards of conduct for ministers- not law
- ministers must act with Selflessness, integrity, objectivity, accountability, openness, honesty, leadership
- must treat colleagues with respect
- PM can enforce this and decide who should resign

Question 19

Conventions relating to judiciary

Answer 19

• must not be politically active
• Parliament must not criticise professional conduct of judges
• When executive criticises judges explicitly or implicitly they offend principle of separation of powers- Boris Johnson September 2019

Question 20

Functions of Legislative

Answer 20

• HoC - elected body 650 members from different political parties
• HoL- unelected body of appointed life peers, hereditary peers and bishops
• Debate and scrutinise proposed legislation
• Propose amendments
• Extract info from executive and hold it to account on its policies and actions
• Scrutinise public expenditure and taxation
• HoC alone responsible for decisions on public finances eg. Tax law or introduce new taxes
• Lords can consider but not amend or block this legislation
• HoL can amend general legislation approved by HoC

Question 21

Delegation of power in executive

Answer 21

Power granted to a minister can be lawfully exercised by a civil servant working in same dept with sufficient seniority

Question 22

Limits on executive

Answer 22

Gov can only act if expressly authorised
Administrative court will intervene if I claim is started against gov (acts in excess of powers given) judicial review

Question 23

Judicial Independence through an Act

Answer 23

Constitutional reform act 2005
- reform office of Lord chancellor so judicial functions largely been taken over by Lord chief justice
- SC established as highest appeal court in the land ending the House of Lords ‘law lords’
- Judicial appointments commission creation prior to appointment of judges (before it was the king on advice of Lord chancellor)

Question 24

How did Lady Hale Argue that judges had become guardians of the UK Constitution

Answer 24

• justices rule on validity of laws passed by devolved legislatures in Scotland, wales and Northern Ireland
• Restrict government to exercise powers within limit intended by P
• They protect fundamental rights of individuals against encroachment by the state

Question 25

What is cabinet Manual

Answer 25

conventions written in there summarises most of them but does not contain all